1 comment:

some observations, comments regarding the Declaration of the RIAA expert Dr. Doug Jacobsen:

In 4. he lists what items he has reviewed. with exception of 4 i. it's all hearsay stuff from other parties that was created without his professional involvement and his experiences he descibes in the prior points. So he also can say something about those things from a hearsay POV only!

In 5. he explaines that "the computer" had a public IP address and was not connected via a wireless router. I'm no expert at all, but I too know that windows saves information regarding its network setup in the registry, so this findings here could be easily made and they are very probably correct. BUT he is saying "this computer was not". Since the plaintiffs claim that the harddrive they got is not the one they are searching for, the plaintiffs themself proved the point that his finding with respect to the IP setup is useless because he has examined a (alledgedly wrong) HDD and not a computer so his sentence could only be "That particular installation of windows on the HDD I reviewed had a network setup that make it highly unlikely that this HDD was used in a computer that was connected to the internet via a (wireless) router. Since my further findings are that I can't find traces of KaZaA on this HDD I was tought to conclude that this is not the HDD that was used in a Computer that Infringed plaintiffs copyrights, therefore from a logical POV I can't make any scientific expert findings about the network setup at the time of the alledged infringement from examining THIS HDD"

in 6. he explained that a forensic examination could show if filesharingsoftware was downloaded to that computer harddrive or if sound- or other files were on the harddrive and could possibly being deleted.This findings are correct according to my knowledge how information is stored on HDD's and what happends to files if the are being thrown into the trashbin and then gets "deleted". However beside his explaination as an expert about this technical fact he made assumptions that are not necessary scientific. He states that the harddrive "showed little usage at all, as evidenced by the lack of user created files and e-mails, and did not reveal the evidence noted above, which I believe the correct hard drive would certainly have shown.He did not stated that he checked for example the power on hours of the disk to determin if this is a long time used HDD for example that was already the "correct hard drive". The fact that there were a "lack of user created files" is in contrast not a prove that this is the wrong harddrive but a prove that it IS the right one and the motion to compel Mr Raymond should not be granted! Because Mr Gabriel pointed out that it is undisputed that Mr. Raymond "[...],cleared space, reinstalled the operating system,[...].By doing exactly that kind of work to the harddrive that Mr Gabriel claims is the one that they want it is normal that this harddrive shows a "lack of user created files". So Dr. Jacobsen is a) finding the forensic facts that one would expect according to the explaination of Mr. Gabriel -which would be the logical conclusion that it is in fact the right disk- but b) finds because he has found no traces of KaZaa that it must be a different HDD.If the Plaintiffs would argue logical now they could claim that the HDD was cleaned by someone that knows how to clean a HDD correctly that no traces of formerly saved files are left behind. But they could not argue that because they could not find traces of alledgedly downloaded files that this is not the HDD that was the one thay requested in their Papers and the motion to compel should be stricken by the judge due to illogical, unsubstantiated and their argumentation contradicting statements from Mr Gabriel and the RIAA expert in this case!

In 7. the RIAA-expert makes statement with regards to personal private information that has nothing to do with finding traces of KaZaA or probably infringing copies of soundrecordings on the HDD! He also did mention for example e-mails in 6. specificly.The plaintiffs are not accusing Lindor that she traded songs via email! Having this RIAA-expert looking at this kind of private information like resumes and emails has nothing to do with what he was supposed to do (finding evidence for alldged copyrightinfringement), and his admitting in 7. that he watched oviously not only the meta data of those files (like creation time, file change time or last access time) but that he also willfully read the content of this private files.Here this RIAAExpert clearly shows why it is important to have a neutral forensic expert doing the investigation so that these kind of private informations that has nothing to do with the allegations like emails and resumes do not fall in the hand of the Plaintiffs and their "working in the field of childpornography [3. d + e]"-expert

P.S. If a reader of this blog has windows and is now curious what the RIAA expert can see when he searches for traces of files, the reader can use this tiny free tool to take a look at his HDD on a very low level to watch for example at a specific text file he creates then "deletes"it and watches again what is on the HDD at the place where the textfile was before. (it is no expert forensic tool, has no real forensic function, but gives a good idea what such an expert can see on a harddrive even if the unaware reader of this blog things he deleted his personal resume before selling the drive on ebay!) http://www.roadkil.net/Sectedit.html(disclaimer usage on your own risk, if you change instead of just watching mportant sectors on your HDD (the Boot Sector for example) you render your windows installation unusable!)

WHEREFOR this blogcommenter recomends that the motion to compel should be stricken! If someone would ask me with my tiny technological knowledge for a recommendation only of course. ;-)

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove